Supreme Court of India
ASHOK GULATI & ORS.versusB.S. JAIN & ORS.
- Citation
- 1986 INSC 271
- Decided
- 17 December 1986
- Disposal
- Appeal(s) allowed
- Bench
- A P SEN
Holding
Ad‑hoc service does not accrue seniority or eligibility for promotion, and the High Court should not have interfered with the State Government's ad‑hoc promotion order.
Summary
The petitioners, Ashok Gulati and others, were promoted as Executive Engineers on an ad‑hoc basis by the Haryana Government in 1978, while respondents B.S. Jain and S.L. Gupta, who had earlier served as Temporary Engineers on an ad‑hoc basis, claimed that their service should count for seniority and eligibility for promotion under Rule 6(b) of the Haryana Service of Engineers (Class I) Rules. The Punjab & Haryana High Court quashed the promotion order under Article 226, directing a fresh consideration of the cases. The Supreme Court held that the High Court erred, emphasizing that service rendered on a purely ad‑hoc or stop‑gap basis does not accrue seniority or eligibility for promotion. It clarified that the word "prescribed" in Rule 15 empowers the State Government to set the examination period, and that "as" in the explanation to Rule 6(b) means "in the capacity of". Consequently, the ad‑hoc promotion order stands and respondents 1 and 2 can only claim seniority from their regular appointment as Assistant Engineers on 21‑April‑1975. The Court directed the State Government to continue the ad‑hoc promotions and to consider the eligibility of respondents 1 and 2 only under the regular service criteria.
Issues considered
- The period of service rendered as a Temporary Engineer on an ad‑hoc basis: does it count for seniority in Class II service and eligibility for promotion under Rule 6(b)?
- Whether the High Court was justified in exercising its writ jurisdiction under Article 226 to quash the State Government's ad‑hoc promotion order.
- The interpretation of the term "prescribed" in Rule 15 of the Haryana Service of Engineers (Class I) Rules.
- The meaning of "as" in the explanation to Rule 6(b) of the same Rules.
- The scope of the State Government's power to relax eligibility conditions under Rule 22.
Legislation cited
- Constitution of Indias. 14, s. 16, s. 226
- Haryana Service of Engineers (Class II) Rules, 1964/1970s. 2(5), s. 6(b)
- Haryana Service of Engineers (Class I) Rules, 1964 (as amended 1975)s. 15, s. 22, s. 6(b), s. 8(2)
- Punjab Reorganisation Act, 1966s. 82(6)
Subjects
ad‑hoc appointmenttemporary engineersenioritypromotionservice rulesArticle 14Article 16Article 226Haryana Service of Engineersrule interpretationservice jurisprudence
Judgment
ASH OK GULATI & ORS.
A
v.
B.S. JAIN & ORS.
DECEMBER 17, 1986
[A.P. SEN AND S. NATARAJAN, JJ.] B
Jurisdiction of High Court urtder Article 226 of the Constitution-
-+ When the impugned order itself is for a temporary period of six months
and subject to the rights of others, propriety of the issuance" of Rule Nisi
and making it absolute after years, at the instance of an aggrieved party.
Temporary Service on ad hoc basis-and dehors the rules, counting
c
.;l of,-Whether such service rendered by the Asst. Engineers would count
for the purpose• of seniority in the cadre of Asst. Engineers and also for
+ the purposes of promotion to Class I Executive Engineers-Haryana
Service of Engineers Class II Public Works Department (Irrigation
Branch) Rules, 1964 and Haryana Service -of Engineers Class I Public D
Works Department (Irrigation Branch) Rules, 1964 as amended in 1975
Rules 2(5), 6(b), 15 and22, scope of · ·
Words and Phrases-Meaning of "Prescribed" in Rule 15
whether there was relaxation of rule-If so, whether such a relaxation is
discriminatory and violative of Articles 14and16 of the Constitution. E
Haryana Service of Engineers, Class II, Public Works Depart-
ment (Irrigation Branch) Rules relating to recruitment etc. of Asst.
Engineery and Haryana Service of Engineers Class I, Public Works
Department (Irrigation Branch) relating to Executive Engineers came
into force in 1970 and 1964 respedively. Respondent No. 2, B.L. Gupta F
and Respondents Nos. B.S. Jain were appointed as temp0rary engineers
(ad-hoc) with effect from 19.5.1969 and 2.1.1971 respectively, the
former sponsored by the Employment Exchange and the latter with
reference to an advertisement in the newspapers. Their appointments
were de hors the said Class II Rules to meet the exigencies of service. In
the letters of appointment issued to them it was specified (i) that their G
appointment was purely on an ad-hoc basis for a period of six months
from the date of their joining the post on a fixed salary of Rs.400 plus
allowances. and their services were terminable without notiee; (ii) that
the appointment would not entitle them to any seniority or other '1enefit
under the service rules for the time being in lorce and would also not
count towards increment in their salary; (iii) that the posts of Tempor- H
603
604 SUPREME COURT REPORTS [1987] l S.C.R.
A ary Engineers in Class II service would be advertised in the course by .J
the Haryana Public Service Commission and they should apply for such
• posts through the Commission, and that if they were not selected by the
Commission, their services would be liable to be. terminated without
notice; and (iv) that their inter-se seniority among the Temporary
Engineers woold be in the 0rder of merit in the list of candidates as
B settled by the Commission. The services of respondents Nos. l and 2
were however continued by the State Government from time to time, six
months at a time till the Secretary, Haryana Public Service Commission
by his letter dated July 8, 1973 addressed to the Commissioner and
Secretary to the State Government of Haryana, Public Works Depart-
ment (Irrigation Branch) conveyed the approval of the Commission to
C the ad-hoc appointment of 251 Temporary Engineers beyond the period .A
of six months till regular appointments were made to the posts through
the Commission. Accordingly both these respondents continued to hold ~
the posts of Temporary Engineers· on. ad-hoc basis till the end of the 1.
year 1974 i.e. till they were recruited as Asst. Engineers through the
Public Service Commission on April 21, 1975 on regular basis. In the
D letter of appointment issued by the Commissioner and Secretary to
Government of Haryana (Irrigation & Power Department) dated
January 13, 1975 it was specified again that inter-se seniority of Asst.
Engineers would be determined on the basis of the combined merit list
prepared hy the Public Service Commission. In the combined merit list
prepared by the Commission, respondents Nos. I and 2 were placed
E very much below the appellants and respondents Nos. 5-24 being at
serial Nos. 148 and 150 respectively,
The State Government of Haryana by order dated December 20,
1978 promoted 62 Asst. Engineers including the appellants and respon- •
dent Nos. 5-24 as Executive Engineers on a purely ad-hoc basis for a
F · period of six months subject to certain terms and 'conditions, namely; (i)
the promotions were subject to the approval of the Pubiic Service
Commission as also to the claims of other officers; (ii) such promotions
were not to give any right to the officers for being appointed on a
substantive basis as Executive Engineers; and (iii) such of the officers as
had not passed the departmental professional and revenue examina-
G tions were required to pass such examination within a period of one
year or otherwise they were liable to be.reverted to their original post.
These ad-hoc promotions of the appellants and respondents Nos. 5-24
were made in relaxation of the provisions contained in rr. 6(b) and 15 of 'r···
the Haryana Service of Engineers, Class I Public Works Department
(Irrigation Branch) Rules, 1964. Presumably, the State Government
H excluded from consideration tbe case of respondents Nos. 1 and 2 for
ASHOKGULATI v. B.S. JAIN 605
,1:-· promotion because in the combined seniority list they ranked below the A
appellants. and respondents Nos. 5-24 being placed at serial Nos. ~8
and 150 respectively. ·
The said ad-hoc promotions to Class I posts were assailed by
respondents l 'and 2 by a petition under Article 226. A learned Single
Judge by his judgment dated 8.10.1980 quashed the impugned order of 8
the State Government making the said ad hoc promotions and directed
the State Government to reach a decision afresh as regards the ad hoc
promotions with advertence to the observations made by him. There-
upon, the appellants preferred an appeal under clause 10 of. the Letters
- Patent but the appeal was dismissed in limine by the Division Bench, by
its order dated 6, 11.1980. The appellants' contention that the appoint- C
ment of respondents Nos. l and 2 as Temporary Engineers on an ad-hoc
~-- basis was contrary to para 8.312 of the Manual of Administration and
therefore the period during which they worked as Temporary
Engineers (ad-hoc) could not be taken into consideration, was repelled
by the Bench po the ground that no such point was taken before the
learned Single Judge. Hence the appeal by special leave. · D
.. Allowing the appeal, the Court
HELD: l. The High Court ought not to have exercised their pow-
-~-
ers under Article 226 of the Constitution and entertained the writ peti-
tion of respondents l and _2 particularly when the impugned order of E
the State Government making promotion of the 62 Asst. Engineers
including the appellants and respondents 5-24 as Executive Engineers
.... was purely on an ad-hoc basis for a period of six months and expressly
made subject to the rights of other officers. Instead of interfering with
the impugned order of the State Government the proper course for the
High Court should have been to issue a direction to the State Govern- F
ment to consider the cases of the eligible officers including respondents
Nos. l and 2 for ad-hoc promotion as Executive Engineer if their turn
was due for such promotion according to their placement in the seni-
ority list and it should have in the meanwhile allowed the appellants and
respondents Nos. 5-24 to continue in their posts as Executive Engineers
(ad-hoc) subject to the condition that while considering their cases for G
promotion the State Government would not take that circumstance into
consid_eration that they had continued to function as Executive
Engineers on an ad-hoc basis. [613G-H; 614A-C].
1.2 Rule. IS of the Punjab/Haryana Service of Engineers Class I H
P.W(D' (Irrigation Branch) Rules, 1970 in terms provides that the
606 SUPREM~ COURT REPORTS (1987) lS.C.R.
departmental professional and revenue examinations for purposes of I
·-y,
A
promotion to the aass I service have to be passed within such period as
may be prescribed. The word 'prescribed' in Rule 15 clearly ell!powers
the State Government to provide for the period during which the pro-
moted officers had to pass the departmental test. In terms of that rule,
the State Government by the impugned order directed that the officers
B who had not passed the departmental professional and revenue exami- <
nations were required to pass such examinations within a period of one +
year otherwise they were liable to be reverted to their original post.
Therefore., no question ofrelaxation under Rule 22 arose. [613C-E)
2.1 The period of service rendered by persons like respondents
Nos. I and 2 who were appointed on ad hoc basis purely on a stop gap -
c arrangement for six months at a time de hors the rules, cannot be
considered for purtioses of their seniority in Class II service or in
reckoning their eligibility of 8 years' service in that class of service
"'-+
I
u11der Rule 6(b) of the Class I Rules. [625F-G]
D 2.2. As a matter of construction the words "Class II service" in
Rule 8(2) introduced by amendment in 1975 must be construed to have
the same meaning as the expression "Class II service" as defined in
Rule 2(5). Prior to the amendment in !975, the expression, "Class II
Service" as defined in Rule 2(5) meant the members of Class II service
including Temporary Engineers. The key to the interpretation of the
E definition clause in Rule 2(5) is the words "for the purpose of promo- ..4
tion." The effect 11f the enlarged definition of Class II service in Rule
2(5) is that these words when found in the Act must, for the purpose of
promotion, be understood in that context in a certain sense i.e. to
include not only members of Class II Se_rvice including Temporary ... ~
Engineers but also Offg. Sub-Division Officers and Offg. Assistant
F Design Engineers who, but for the interpretation clause, would not be
so included. That would be in consonance with the purpose and object
of the amendment. [619G-H; 6208-C) \
2.3 The meaning of the word "as" in the collocation of the words
"any service rendered as a Temporary Engineer" in Explanation to
G Rule 6(b) of the Class I Rules must obviously mean "in the capacity
of''. [621A-B]
Dr. Asim 'Kumar Bose v. Union of India & Ors., (1983) 1 sec r-·
345, applied.
H 2.4 It is true that though respondents Nos. I and 2 were
ASHOK GULATI v. B.S. JAIN 607
appointed as Temporary Engineers on an ad-hoc basis, they should be A
~ deprived of the period oftheir officiation as such till they were absorbed
to the post of Assistant Engineer on a regular basis through the Public
· Service Commission on April 21, 1975. That is a legal consequence
which cannot be avoided on well-settled principles. [6230-E]
2.5 According to the accepted cannos of service jurisprudence, B
-+ seniority of a person appointed must be reckoned from the date he
becomes a member of the service. The date from which seniority is to be
reckoned may be laid down by rules or instructions (a) on the basis of
the date of appointment (b) on the basis of confirmation (c) on the basis
~
of regularisation of service (d) on the basis of length of service; or (e) on
~ any other reasonable basis. It is well-settled that an ad-hoc or fortuitous c
appointment on a temporary or stop-gap basis cannot be taken into
account for the purpose of seniority even if the appointee was qualified
-+ to bold the post on a regular basis, as such temporary tenure hardly
counts for seniority in any system of service jurisprudence. [6248-D]
2.6 It must now be well taken as ·well established that after the D
Supreme Court decisions from N. K. Chauhan to Bales war Das in the
absence of any other valid principle of seniority, the inter-se seniority
. between direct recruits and promotees should as far as possible be
determined by the length of continuous service whether temporary or
permanent in a particular grade or post (this should exclude periods for
->. which an appointment is held in a purely stop-gap or fortuitous E
arrangement). These decisions particularly that in Baleshwar Das's
case clearly lay down that ordinarily and in the absence of any specific
\
--- rule of seniority governing the cadre or service, the length of continuous
officiation should be counted in reckoning seniority as between direct
recruits and promotees. These authorities nowhere lay down that the
same principle i.e. the length of conlinuous officiation must be the sole F
guiding factor and the only criterion in determining seniority of such ad-
~- hoc employees vis-a-vis direct recruits. On the contrary, they clearly
proceed on the principle that persons appointed on an ad-hoc basis or
. for fortuitous reasons or by stop-gap arrangement, constitute a class
which is separate and distinct from tho8e who are appointed to posts in the
service in strict coofonnity with the rules ofrecrnilment. [629E-G; 627-E-F] G
N.K. Chauhan & Ors. v. State of Gujarat & Ors., [1977] l SCR
1037; S.B. Patwardhan & Ors. v. State of Mahar~shtra & Ors., [1977]
3 SCR 775.; and Baleshwar Das & Ors. v. State of Uttar Pradesh &
Ors., (1981] l SCR449, discussed.
H
608 SUPREME COURT REPORTS [1987] l S.C.R.
A A. P. M. Mayakutty etc. v. Secretary, Public Service Department,
[1977] 2 SCR 937; State ofGujaratv. C.G. Desai & Ors., [1974] 2 SCR
255; A. lanardhana v. Union of India & Ors., [1983] 3 SCC 601;
O.P. Sing/av. Union of India, [1984] 4 SCC 450; G.S. Lamba v. Union
of India, [1985] 2 SCC 604; P.S. Mahal v. Union of India, [1984] 4 SCC
545; and Pran KriShna Goswami & Ors. v. State of West Bengal &
B Ors., [1985] Suppl. SCC 221, referred to.
Narendra Chadha & Ors. v. Union of India- & Ors., [1986] 2
SCC 157; G.P. Doval & Ors. v. The Chief Secretary, Government of
Uttar Pradesh & Ors., [1985] l SCR 70; and C. P. Damodaran Nayar v.
State of Kera/a & Ors., (1974] 2 SCR 867, distinguished.
c
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 149
of 1981.
From the Judgment and Order dated 6.1 J.1980 of the Punjab
and Haryana High Court in C.P. A. No. 811of1980.
D
M.K. Ramamurthy, U.R. Lalit, Shanti Bhushan, M.R. Sharma,
P.P. Rao, S.K. Mehta, B.R. Agarwala, N.D. Garg, E.M.S. Anam,
P.P. Sharma, K.S. Tiwari, C.V. Subba Rao, I.S. Goel, P.H. Parekh,
Sohail Dutt, Uma Datta and V.P. Goel for the appearing parties.
E The Judgment of the Court was delivered by
SEN, J. In this appeal by special leave, the short question
involved is whether respondents Nos. I and. 2 were entitled to the
benefits of the period of service rendered by them as Temporary
Engineers on an ad-hoc basis in the Irrigation Branch of the Public
F Works Department, State of Haryana i.e. prior to their appointment
as Assistant Engineers on regular basis on April 21, 1975 along with
the six appellants and respondents No"s. 5-24 for purposes of reckoning
their eligibility for promotion to the post of Executive Engineer under
r. 6(b) read with the Explanation thereto of the Haryana Service of
Engineers, Class I, Public Works Department (Irrigation Branch)
G Rules, 1964, as amended in 1975, ('Class I Rules' for short) as also for
purposes of their seniority in the cadre of Assistant Engineers.
Facts bearing on the question are as follows. In response to an ~--
advertisement published in the Daily Tribune of February 6, 1970
inviting applications for appointment as Temporary Engineers oo an
H ad-hoc basis, respondent No. 1 B.S. Jain was appointed as a Tern-
...,.
\ ASHOK GULATI v. B.S. JAIN [SEN, i.] 609
porary Engineer (ad-hoc) w.e.f. January 2, 1971 for a period of six· A
months i.e. after the coming into force of the Haryana Service of
Engineers, Class II, Public Works Department (Irrigation Branch)
Rules, 1964 ('Class II Rules' for short). Prior to this.· respondents No.
2 S.L. Gupta was also appointed as a Temporary Engineer on an
ad-hoc basis w.e.f. May 19, 1969 by calling his name through the' B
Employment Exchange i.e. subsequent to the.coming into force of the
Class II Rules. Their appointments were de hors the rules to meet the
exigencies of service. In the letters of appointment issued to them, it
was. specified that their appointment was purely on an ad-hoc basis for
a period of six months from the date of their joining the post on a fixed
salary of Rs.400 plus allowances and I.heir services were terminable
without notice. They were specifically informed that the appointment c
would not entitle them to any seniority or other benefit under the
service rules for the time being in force and would also not count
towards increment in their salary. They were also intimated that the
posts of Temporary Engineers in Class II service would be advertised
in due course by the Haryana Public Service Commission and they
D
should apply for such posts through the Commission, and that if they
were not selected by the Commission, their services would he liable to
/
be terminated without notice. Also that their inter-se seniority among
the Temporary Engineers would be in the order of merit in the list of
candidates as settled by the Commission. The services ·of respondents
Nos. I and 2 were however continued by the State Government from
time to time, six months at a time, till the Secretary, Haryana Public E
Service Commission by his letter dated July 8, 1973 addressed to the
Commissioner and Secretary to "the State Government of Haryana,
Public Works Department (Irrigation Branch) conveyed the approval
of the Commission to the ad-hoc appointment of 251 Temporary
Engineers beyond the period of six months till regular appointments
F
were made to the posts through the Commission. Accordingly, both
these respondents continued to hold the. posts of Temporary Engineers
/ on ad-hoc basis till the end of the year 1974 i.e. till they were recruited
as Assistant Engineers through the Public Service. Commission on
April 21, 1975 on regular basis.
G
It appears that in response to an advertisement issued by the
--( Public Service Commission in October- 1973, respondents Nos. I & 2
appeared at a competitive examination along with the appellants and
respondents Nos. 5-24 and were . selected by the Public Service
~ommission for appointment as Assistant Engineers under the
Haryana ~eryice of Engineers, Class II, Public Works Department H
(Irrigation Branch) Rules, 1970. In the letter of appointment issued by
610 SUPREME COURT REPORTS [1987] 1 S. C.R.
j'
A the Commissioner and Secretary to Government of Haryana (Irriga-
tion & Power Department) dated January 13, 1975 it.was specified that
inter-se seniority of Assistant Engineers would be determined on the
basis of the combined merit list prepared by the Public Service
Commission: In the combined merit list' prepared by the Commission,
respondents Nos. 1 & 2 were placed very much below the appellants +
B and respondents Nos. 5-24 being at serial Nos. 148 and 150 respec-
tively. It may be stated that the merit list prepared by the Commission
has never been questioned before us.
A few more facts. The State Government of Haryana by order
dated December 20, 1978 promoted 62 Assistant Engineers including
C the appellants and respondents Nos. 5-2.J as Executive Engineers on a
purely ad-hoc basis for a period of six months subject to certain terms
and conditions, namely: (i) The promotions were subject to the
approval of the Public Service Commission as also to the claims of
other officers. (ii) Such promotions were not to give any right to the
officers for being appointed on a substantive basis as Executive
D Engineers. And (iii) Such of the officers as had not passed the depart-
mental professional and revenue examinations were required to pass
such examinations within a period of one year or otherwise they were
liable to be reverted to their original post. These ad-hoc promotions of
the appellants and respondents Nos. 5-24 were made in relaxation of
the provisions contained in rr.6(b) and 15 of the Haryana Service of
E Engineers, Class I, Public Works Department (Irrigation Branch)
Rules, 1964. Presumably, the State Government excluded from
considc;ration the case of respondents Nos. 1 & 2 for promotion
·because in the combined seniority list they ranked below the appel-
lants and respondents Nos. 5-2.J being placed at serial Nos. 148 and 150
respectively.
F
The ad-hoc promotion of appellants and respondents Nos. ·5·2.J
was assailed by respondents Nos. 1 & 2 by a petition under Art. 226 of
the Constitution filed before the Punjab & Haryana High Court
mainly on the ground "that when qualified persons like them i.e.
respondents Nos. 1 & 2 were eligible for being considered for promo-
G tion to the post of Executive Engineer under r. 6(b), there was no
justification whatever for the State Government to grant general relax-
ation under the pro>(iso thereof to make the ineligible persons eligible
for promotion in denial of their claims. It was further pleaded that the
State Government having relaxed the condition of eligibility under the
proviso to r.6(b) read with the Explanation thereof as regards eight
H years service in the case of promotion of the appellants and respon·
ASHOK GULATh. B.S. JAIN [SEN, J.l 611
..,,
\
dents Nos. 5-24 as Executive Engineer on an ad-hoc basis, failed to A
appreciate that respondents Nos. I & 2 who were recruited along with
them and had also put in more or less 31/2 years service as Assistant
Engineers became entitled to the benefit of such relaxation and the
action of the State Government in not considering their cases for such
promotion was wholly arbitrary and was tantamount to denial of equal
.opportunity in the matter of employment in violation of Arts. 14 and B
16( 1) of the Constitution. It was also pleaded that the power conferred
on the State Government to grant relaxation under r.22 was not a
- general power but a powe.r to mitigate hardship in a particular case and
thus the general relaxation granted by the State Government to some
of the respondents who had not passed their departmental· professional
and revenue examinations was invalid. It was asserted that the State c
Government and the . Engineer-in-Chief, Irrigation Department,
Haryana had wrongly treated respondents Nos. 1 & 2 as ineligible for
promotion on the ground that the period from January 1971 and May
1969 upto April 2'1, 1975 i.e. the period during which respondents Nos.
1 & 2 remained employed as Temporary Engineers on ad-hoc basis,
could not be treated as period in tha_t class of service within the mean- D
ing of r.6(b) i.e. in Class II service.
The ·specific stand taken by the State Government in the return
filed before the High Court was that respondents Nos. I & 2 were
recruited to the post of Assistant Engineer on April 21, 1975 and thus
had·only about 31/2 yea'rs service on December 20, 1978 to their credit E
when appellants and respondents Nos. 5-24 were promoted as Execu-
tive Engineers on an ad-hoc basis. Prior to their appointment as
Assistant Engineers, respondents Nos. 1 & 2 had been appointed as
Temporary Engineers on ad-hoc basis de hqrs the rules and under the
terms of appointment they were not entitled to any seniority or other
benefit under the service rules as a result of such appointment. F
Further, it was pleaded that respondents Nos. I & 2 in the seniority list
prep'ared by the Public Service Commissiop were ranked junior to the
appellants and respondents Nos. 5-24 and therefore they were not
entitled to be considered for promotion.
A learned Single Judge (R.N. Mittal, J.)by his judgment dated G
' quashed the impugned
October 8, 1980 . order of the State Government
making ad-hoc promotions of the appellants and respondents Nos.
5-24 and directed the State Government to reach a decision afresh as
regards the ad-hoc promotions with adverterice to the observations
made by him. In his judgment the learned Single Judge repelled the
contention of respondents ~os. 5-24 for being considered for promo' H
612 SUPREME COURT REPORTS [1987] l S.C.R.
tion since none of them had completed eight years' service as Assistant
A
Engineer on the ground that the State Government was empowered in
terms of proviso to r. 6(b) to relax generally, in public interest, the
condiiion regarding eight years' experience for reasons to be recorded
in writing. He found on perusal of the records placed before him that
reasons for the relaxation in public interest of the condition of eight
B years' service imposed by r.6(b) had in fact been recorded for reducing
the period to 31/2 years in consultation with the Finance Department. ·
He accordingly held that the ad-hoc promotion of the appellants and
respondents Nos. 5-24 was not invalid on that account. The learned
Single Judge however accepted the contention of respondents Nos: 1
& 2 that they were entitled to the benefit of the period of continuous
officiation as Temporary Engineers on an ad-hoc basis from January
C 1971 and May 1969 to April 21, 1975 in reckoning eight years' experi-
ence in that class of service within the meaning of r.6(b) i.e. Class II i
service by reason of Explanation to r. 6(b) and were therefore eligible
for promotion to the post of Executive Engineer under r. 8(2) in view
of the definition of the expression 'Temporary Engineer' contained in
D r.2(5), as amended in 1975. _He also upheld their contention that the
·power conferred on the State Government under r.22 was not a gen-
eral power of relaxation but a power exercisable only to mitigate any
undue hardship in the case of a particular individual and therefore the
_impugned order of the State Government permitting relaxation in the
case of respondents Nos. 9, 10 and 11 Gyan Singh, P.O. Kadian and
E C. P. Goel as regards the passing of the departmental professional and
.revenue examinations as required by r. 15 was invalid. Upon that view,
the learned Single Judge allowed the Writ Petition and quashed the
impugned order of the State Government for the ad-hoc promotion of
the appellants and respondents Nos. 5-24 as Executive Engineers.
Incidentally, the judgment ·of the learned Single Judge leaves
F untouched the impugned order insofar as it relates to the ad-hoc
promotion of 37 Assista!'t Engineers to the post' of. Executive
Engineer.
Thereupon, the appellants preferred an appeal under cl.10 of the
letters patent but the appeal was dismissed in limine by a Division
G Bench (P.C. Jain & C.S. Tiwana, JJ) by its order dated November 6,
1980. The learned Judges stated that they were in full agreement with
the view expressed by the learned Single Judge. The appellants appa-
rently advanced a contention that the appointment of respondents
Nos. 1 & 2 as Temporary Engineers on an ad-hoc basis was contrary to
Para 8.312 of the Manual of Administration and therefore the period
H during which they worked as Temporary Engineers (ad-hoc) could not
ASHOKGULATI v. B.S. JAIN [SEN, J.] 613
'
.v-· be taken·into consideration. The.learned Judges repelled the conten- A
tion o,n the ground that no such point was taken before the. learned
Single Judge.
We must at the very outset observe that the judgment of the
learned Single Judge quashing the impugned order of the State
Government for the promotion of the appellants and respondents N0s. B
5-24 as ~xecutive Engineers on an ad-boc basis on the ground that the
State Government could not have relaxed the condition of passing the
departmental profressional and revenue examinations prescribed
- under r. 15 of the Class I Rules by taking. recourse to r. 22 which did
not confer a general power of relaxation can hardly be sustained. We
are afraid, the learned Single Judge was completely misled in taking c
the view that he did. This was not a case of relaxation at all but a
question of prescribing the period during which such examination had
to be cleared as required under r. 15. R. 15 in terms provides that the
departmental professional and revenue examinations for purposes of
promotion to the Class I service have to be passed within such period
as ·may be prescribed. Jbe word 'prescribed' in r. 15 clearly empowers D
· the State Government to provide for the period during which the
promoted officers had to pass the departmental test. In terms of that
rule, the State Government by the impugned order directed that the
officers who had not passed the departmental professional and
revenue examinations were required td pass such examinations within
a period of one year otherwise they were liable to be reverted fo their E
original post. It must be said in all fairness that learned eounsel for
respondents Nos. 1 & 2 did not support.this part of the Judgment.
After having heard learned counsel for the parties quite at some
length in a hearing lasting over several days; we feel that irrespective
cf the merits of the contentions advanced, no useful purpose would be F
served in maintaining the judgment of the High Court insorfar as it
quashes the impugned order of the State Government dated Decem-
ber 20, 1978 for the promotion of the appellants and respondents Nos.
5-24 as Executive Engineers on an ad-hoc basis after a lapse of such a
long time as it would create unnecessary administrative complications.
During the hearing we expressed our doubts about the wisdom of the G
High Court in entertaining the Writ Petition of resp~ndents Nos. 1 & 2
particularly when the impugned order of the State Government mak-
1. ing promotion of the 62 Assistant Engineers including the appellants
and respondents Nos. 5-24 as Executive Engineers was purely on an
ad-hoc basis for a period of six months a.nd expressly made subject to
H
the rights of other officers. Instead of interfering with the impugned
614 SUPREME COURT REPORTS [ 1987] 1 S.C. R.
A order of the State Government the proper course for the High Court 'f
should have been to issue a direction to the State Government to
consider the cases of the eligible officers including respondents Nos. 1
& 2 for ad-hoc promotion as Executive Engineers if their turn was due
for such promotion according to their placement in the seniority list
and it should have in the meanwhile allowed the appellants and re-
B spondents Nos. ·5-24 to continue in their posts as Executive Engineers -::y·
(ad-hoc) subject to the condition that while considering their cases for
promotion the State Government would not take that circumstance
into consideration that they had continued to function as Executive
Engineers on an ad-hoc basis.
c That course commends to us for another reason as well.
Although the High Court by its judgment and order dated October 8,
1980 quashed the impugned order of the State Government dated
December 20, 1978 making the ad-hoc promotions and issued a direc-
tion that the Government should reach a decision afresh in the matter,
the fact remains that neither the judgment of the High Court nor the
D directions made by it have taken effect. On the contrary, this Court
while granting special leave on January 14, 1981 stayed the operation
of the judgment of the High Court. As a consequence, the result has
been that the appellants and respondents Nos. 5-24 have continued to
function as Executive Engineers on an ad-hoc basis for the last about
eight years under the interim order of stay. Incidentally, the judgment
E of the High Court leaves untouched the promotion of 37 Assistant
Engineers and Executive Engineers. The State Government will also
have to give effect to the decision of this Court in A.S. Parmar's v.
State of Haryana, [1984] 2 SCR 476 laying down that a degree in
Engineering was ·not an essential qualification for promotion of
Assistant Engineers in the Irrigation Branch to the cadre of Executive
F Engineers in Class I service under r. 6(b) of the Class I Rules and
therefore the Assistant Engineers who are diploma holders are euqally
eligible for such promotion. The State _Government in the Public
Works Department (Irrigation Branch) by a notification dated June
22, i984 purported to effect an amendment to r.6(b) of the Class I
Rules with a view to nullify the decision of I.his Court in A.S. Parmar's
G case. By a separate judgment in the connected Writ Petitions Nos.
630-32/84 deli,,ered today, we have struck down the impugned notifi-
cation as offending against Arts. 14 and 16(1) of the Constitution and
also as ultra vires the State Government by reason of the proviso to
s.82(6) of the Punjab Reorganisation Act, 1966. It appears that the
State Government has been treating a degree in Engineering referred
H to in Cl.(a) r.6 as an essential qualification for promotion to the post of
ASHOK GULATI v. B.S. :JAIN [SEN, J.l 615
~- Executive Engineer in Class I service in the case of officers in Class II A
service presumably on the view expressed by the Punjab & Haryana
High Court in O.P. Bhatia v. State of Haryana, ILR (1980] P & H 470. ·
The controversy was settled by the decision of this Court in J\.S.
Parmar's case and it overruled the decision of the High Court in O.P.
Bhatia's case and held on a consideration of the relevant rules that the
qualification of degree in Engineering was not necessary fo the case of B
i• officers in Class II service for promotion to the post of Executive
Engineer. That apart, we must deal with the appeal on merits as the
judgment of the High Court leaves much to be desired.
j Issues raised in this appeal by special leave are of far-reaching
significance to the civil services. It involves a claim by persons who had c
been in employment in the Government service on a purely ad-hoc
-t basis de hors the rules, that they were entitled upon their absorption to
the po~t on a regular basis, to the benefit of the period of their continu:
ous officiation as temporary employees on ad-hoc basis for determin-
ing their eligibility for promotion to the higher grade or post. The
questions presented are whether the principles laid down in N. K. D
Chauhan & Ors. v. State of Gujarat & Ors., [1977] 1 SCR 1037 and
S.B. Patwardhan & Ors. v. State of Maharashtra & Ors., [1977] 3 SCR
n5 reiterated in Baleshwar Das & Ors. v. State of Uttar Pradesh &
Ors., [ 1981] l SCR 449 and subsequently followed in several decisions,
-~ that ordinarily in the absence of any specific rule of seniority governing
the cadre or service, the length of continuous officiation should be E
coun.ted in reckoning seniority as between direct recruits and pro-
. motees, should also be extended in determining seniority of such ad-
hoc employees vis-a-vis dire'ct recruits, and whether the failure on the
part of the Government to count the entire period of officiation as
such ad-hoc employees would be per se arbitrary and irrational and
' thus violative of Arts. 14 and 16(1) of the Constitution inasmuch as the F
--;( temporary service in the post in question was not for a short period
intended to meet some emergent or unforeseen circumstances, but to
meet the exigencies of the service. It is asserted that the recent pro-
nouncement of .this Court in the case of Narendra Chadha & Ors. v.
Union of India & Ors., [1986) 2 SCC 157 supports this view. The
argument at first blush appears to be plausible but on deeper considera- G
tion is not worthy of acceptance. We proceed to give reasons therefor.
.... We are not aware of any principle or rule which lays down that
the length of continuous officiation/service is the only relevant crite-
rion in determining seniority in a particular cadre or' grade, irrespec-
tive of any specific rule of seniority to the contrary. It is necessary to H
/
616 SUPREME COURT REPORTS [1987] l S.C.R.
A emphasise that the principles laid down in the two leading cases of
N.K. Chauhan and S.B. Patwardhan, reiterated in Baleshwar Das's
case and subsequently follow.ed in several decisions are not an autho-
rity for any such proposition. These decisions particularly that in
Baleswar Das's case clearly lay down that ordinarily and in the absence
of any specific rule of seniority governing the cadre or service. the
B length of continuous officiation should be counted in reckoning senio-
rity as between direct recruits and promotees. These authorities
nowhere lay down that the same principle i.e. the length of continuous
officiation must be the sole guiding factor and the only criterion in
deterinining seniority of such ad-hoc employees vis-a-vis direct
recruits.
c The contention on behalf of the appellants firstly is that the High
Court was clearly in e.rror in holding that the entire period of service of
respondents Nos. l & 2 as Temporary Engineers on ad-hoc basis i.e.
t
the period from January 197 land May 1969 to April 21, 1975 had·to be
counted not only for purposes of their seniority under r.8(2) of the
D Class I Rules but also for the purpose of their eligibility for promotion
to the post of Executive Engineers under r.6(b). It is said that the High
Court failed to appreciate that respondents Nos. l & 2 were not
recruited as Temporary Engineers under the instructions contained in
the Manual of Administration issued under the Punjab Service of
Engineers, Class II, Public Works Department (Irrigation Branch)
E Rules, 1941 orunder the Punjab Service of Engineers, Class II, Public
Works Department (Irrigation Branch) Rules, 1970, but their appoint-
ment as Temporary Engineers was purely on an ad-hoc basis de hors
the rules and therefore they did not fall within the ambit of the defini-
tion of the expression 'Class II Service' as defined in r. 2(5), as
..
amended in 1975. Secondly, the High Court failed to take into acco ,nt
F the fact that respondents Nos. I & 2 became members of Class II
service only on April 21, 1975 when they were recruited as Assistant
Engineers on a regular basis through the Public Service fommission.
Till then they did not answer the description of 'Temporary Engineers
as defined in r.2(5). They did not even figure in the notification dated
May 18, 1982 issued by the State Government under r.3 constituting
G the service of Engineers as Class II service w.e.f. December 25, 1970.
It must therefore logically follow that the service rendered by them as
Temporary Engineers on ad-hoc basis prior to their recruitment as
Assistant Engineers in 1975 could not be·treated to be service in that
class within the meaning of r.6(b) of the Class I Rules. Likewise, r.8(2)
which speaks of any service rendered as Temporary Engineer must be
H construed accordingly as meaning service rendered by a Temporary
ASHOKGULATI v; B.S. JAIN (SEN, J.) 617
Engineer recruited in the manner provided by the instructions A
contained in Manual of Administration issued under the 1941 Rules or
recruited as such under the 1970 Rules. Lasily, the decision in Balesh-
war Das's case does not lay down any proposition that persons
employed on a purely ad-hoc or fortuitous basis like respondents Nos.
1 & 2 are entitled as a matter of law to the benefit of their period of
ad-hoc service and the two later decisions in G.P. Doval & Ors., v. B
The Chief Secretary, Government of Uttar Pradesh & Ors., [1985] I
SCR 70 and Narendra Chadha are of little assistance. T)lese submis-
-
sions, in our opinion, must prevail.
In reply, the main contentiQn of learned coul)sel for respondents
Nos. 1 & 2 is that respondents Nos. 1 & 2 upon their absorption to the
post of Assistant Engineer on a regular basis on April 21, 1975 were C
-+ entitled to the benefit of the'entire period of officiation as Temporary
Engineers on an ad-hoc basis i:e. the period from January 1971 and
May 1969 to April 21, 1975 and.the failure of the Government to count
such period of their ad-hoc service was per se arbitrary, irrational and
thus violative of Arts. 14 and 16( 1) of the Constitution inasmuch as the o
• service rendered by them as Temporary Engineers (ad-hoc) was not e
for a short period intended to meet some emergent or unforeseen
circumstances, but to meet the exigencies of the service and there is no
reason why the pri.nciples laid down in Baleshwar Das's case should
also not be extended in determining the seniority of such ad-hoc
employees vis-a-vis direct recruits. Secondly, he contends that exercise E
of the power of relaxation of the condition of eight years' service for
purposes of eligibility conferred on the State Government under the
proviso to t.6(b) is conditioned by the obligation to record reasons in
writing which· requirement was mandatory. There was failure on the
part of (he Government to record reasons therefor or to indicate any
basis to show that such relaxation was in public interest. Further, the F
words 'Class II Service' in r.8(2) must bear the same meaning as the
expression 'Class II Service' as defined in r.2(5). The artificial defini-
tion of 'Class II Service' introduced by amendment of r. 2(5) in 1975
was obviously to bring persons who were not Assistant Engineers i.e.
members of Class II service within the zone of consideration for
purposes of promotion to the post of Executive Engineer under r.6(b) G
"·· of Class I Rules. Furthermore, the State Government having relaxed
the condition of 8 years' service by recourse to the proviso to r.6(b ),
respondents Nos. 1 & 2 were similarly situate as the appellants and
respondents Nos, 5-24 as they were all recruited together as Assistant
Engineers in Class· II service in 1975 and they had all rendered about
3 1h years' service in that class and therefore failure on ihe part of the H
State Government to consider the case of respondents Nos. 1 & 2 for
618 SUPREME COURT REPORTS [1987] 1 S.C.R.
A purposes of promotion to the post of Executive Engineer was tanta-
. mount to the toial exclusion of a class within a·class and was thus per se
discriminatory. Lastly, the action of the State Government in making
ad-hoc promotion of the appellants and respondents Nos. 5-24 was
wholly ma/a fide. Learned counsel wanted us to draw an inference of
ma/a fide from the fact that the Private Secretary to Chief Minister was
B present at a meeting held in the room of the Irrigation Minister where
the list of promotion was settled. It is suggested that initially the names
of respondents Nos. 1 & 2 figured in the list but later on wholly ex-
traneous considerations their names we~e deleted.
It would be convenient at this stage to refer to the relevant
C . provisions of the Punjab Service of Engineers Class I, P. W .D. (Irriga-
A. -
tion Branch) Rules, 1964, as amended in 1975. The amendment
effected in 1975 substituted a new r.2(5) for the existing r.2(5) and it
defines the expression 'Class II Service' as follows:
"2(5). 'Class II Service' shall, for the purpose of promotion
to the service, comprises of members of the Haryana Service
of Engineers, Class II (Irrigation Branch); Temporary
Engineers, Officiating Sub-Divisional Officers and Officia-
ting Assistant Design Engineers, except those promoted in
excess of the quota fixed under rule 6 of the Haryana
Service of Engineers, Class II, Public Works Department
E (Irrigation Branch) Rules, 1970."
The qualifications of persons eligible for appointment are prescribed
in r.6 which is in these terms: •
"6. Qualifications: No person shall be appointed to the
F service unless he-
(a) Possesses one of the University Degrees or other
qualifications prescribed in Appendix B of these Rules;
Provided that Government may waive this qualifica-
G tion in the case of a particular officer belonging to Class II
Service;
(b) In case of an appointment by promotion from Class II
Service, has completed in that class of service for a period
of ten years from the commencement of these rules, six
H years service and after that period eight years service;
/
ASHOK GULATI v. B.S. JAIN (SEN, J;] 619
Provided that if it appears to tie necessary to promote A
an officer in the public interest, the Government may, for
reasons to be recorded in writing.either generally or in any
individual case reduce the period of six or eight years to
such extent as it may deem proper in consultation with the
Finance Department.
B
Explanation: For the purpose of this clause in computing of
.. the period of six or eight years any service rendered as.a
Temporary Engineer shall be taken into account" ..
We may ~ext set out r.8 which deals with the method of promotion:
c
"8. Appointment by promotion: (1) A Committee consist-
ing of the Chairman of the Public Service Commission and
where the Chairman is unable. to atten_d any other member
of the Commission representing it, the Secretary, P.W.D.
(Irrigation Branch) and the Chief Engineer, Punjab,
P. W .D. Irrigation Branch' shall be constituted. D
(2). The Government shall prepare a list of eligible and
suitable persons for promotions in order of their seniority
in Class II Service' which shall be reckoned:
(a) in the case of a m.ember of the Haryana Service of E
Engineers, Class II (Irrigation Branch) from the date of his
.. continuous officiation as Sub-Divisional Officer or Assis-
tant Design Engineer or appointment as Temporary
Engineer, as the case may be: ·
F
i (b) in the case of a Temporary Engineer froi:n the date of
his appointment as such."
As a matter of construction, the words 'Class II service' in r.8(2)
introduced by amendment in 1975 must be construed to have the same
meaning as the expression 'Class II service' as defined in r.2(5). We
find the language employed by the framers of the rules in the defini- G
tion clause in r.2(5) has been departed from in the definition of the
expression 'Class II service' and it is generally but not always a ·fair
presumption that the alteration in the language used in the new defini-
tion in r.2(5) was intentional. Prior to the amendment in 1975, the
expression, 'Class II Service' as defined in r.2(5) meant the members H
of Class II service including Temporary Engineers. As the State stood
620 SUPREME COURT REPORTS [1987] l S.C.R.
A in pet I of many more Executive Engineers it became essential to take
steps 'J recruit not only persons who strictly belong to Class II Service
proper but also to bring withhin the zone of consideration others who
are not members of Clause II Service e.g. Offg. Sub-r:Jivisional
Officers and Offg. Assistant Design Engineers who would not be so
included. The key to the interpretation of the definition clause in
B r.2(5) is the words "for the purpose of promotion". The effect of the
enlarged definition of Class II Service in r.2(5) is that these words
when found in the Act must, for the purpose of promotion, be under-
stood in that context in a certain sense i.e. to include not only mem-
bers of Class II Service including Temporary Engineers but also Offg.
Sub-Division Officers and Offg. Assistant Design Engineers who, but ....-4..
...
C for the interpretation clause, would not be so included. That would be
in consonance with the purpose and object of the amendment. There
is reason why the words 'Class II Service' in r.8(2) introduced in
1975 must bear the same meaning as the expression 'Class II Service'
as defined in r.2(5) as both the provisions deal with the same subject
i.e. promotion of members of Class II Service to the post of Executive
D Engineer in Class I Service. The mode of promotion to the post
of Executive Engineer is as laid down in r.8(2). Now, r.8(1) re-
mains unaltered. R.8(1) directs that a committee consisting of the
Chairman of the Public Service Commission or where the Chairman is
unable to attend any other member of the Commission representing ii,
Secretary to the Government, P.W.D. (Irrigation Branch), and the
E ChiefEngineer, Punjab, Irrigation Branch shall be constituted. Under
r.8(2) introduced in 1975, the Government has to prepare a list of
eligible and suitable persons for promotion in order of their senionty4
in Class II Service which shall be reckoned (a) in the case of a member
of the Haryana Service of Engineers, Class II, Irrigation Branch, from
the date of his con.tinuous officiation as Sub-Divisional Officer or
F Assistant Design Engineer or appointment as Temporary Engineer, as
the case may be. (b) In the case of a Temporary Engineer from the
date of his appointment as such. These provisions can lead to no other
conclusion but that the list of eligible and suitable persons for promo-
tion has to be drawn not only comprising of regular members of Class
II Service including Temporary Engineer5 in order of their seniority
G but also of Offg. Sub-Divisional Officers or Offg. Assistant Design
Engineers in that class of service from the date specified therein.
Apparently, the requirements of rr.8( 1) and 8(2) have not been comp-
lied with. All that exists is the combined seniority list of Assistant
Engineers beloning to Class II Service in order of their seniority pre-
pared by the Public Service Commission which incidentally has never
H been challenged.
ASHOK GULATI'- B.S. JAIN !SEN, J.I 62 l
'
.¥
The meaning of the word 'as' in the collocation of the words 'any A
service rendered as a Temporary Engineer' in Explanation to r.6(b) of
the Class I Rules must obviously mean 'in the capacity of'. In Dr. Asim
Kumar. Bose v. Union of India & Ors., [1983] 1 sec 345 the question
was whether the appellant who was a Radiologist in the Maulana Azad
Medical College which was a post belonging to Specialist Grade. II could
B
~ be appointed to the post of Professor of Radio-Therapy in that College
by direct recruitment under r.8(2) of the Central Health Service
(Amendment) Rules: 1966. In 1971 there were certain amenpments in
the Rules prescribing the mode in which the posts of Professor and
Associate Professor could be filled in and paragraphs "2(b) and 3 of
.
).. Annexure I to the Second Schedule and sub-r.(2a) to r.8 were inserted
which brought about a change. These amendments brought about a c
change inasmuch as they provided for a, vertical channel of promotion
to the teaching post upto the post of Associate Professor. At p.363 of
the Report this Court referred to the report of the Third Pay Commis-
sion where it was observed at p. 173.
D
"While the Specialists on the teaching side can hold posts
of hospital specialists, the latter cannot be promoted to
teaching posts because of lack of teaching experience."
Presumably, the Ministry of Health on that view held that the word 'as'
~ in paragraphs 2(b) and 3 of Annexure I to the Second Schedule and
E
sub-r. (2a) of r.8 makes holding of a post in the cadre a condition
precedent to the post of a Professor or an Associate Professor. Jn that
- context, it was observed:
Normally, a Professor or" an Additional Professor in a
medical college or a teaching institution can be appointed
F
by direct recruitment from amongst persons holding the
t post of Associate Professor or Assistant Professor in the
concerned speciality in a medical° college or a teaching
insti~ution having at least six years.' teaching experience out
of 12 years; standing in the Grade through the Union
Public Service Commission. An Associate Professor in the
medical college or a teaching institution can only be promo- G
led from amongst persons holding the post of Reader or
.... Assistant Professor having at least five years' teaching ex-
perience in the concerned speciality by the Departmental
Promotion Committee. We are inclined to the view that the
I word "as" in the collocation of the words used "at least six H
-
years' experience as Associate Professor/Assistant Profes-
.
622 SUPREME COURT REPORTS [1987] 1 S.C.R.
A sor /Reader" in paragraph 2(b) and of the words "at least
five years' experience as Reader/Assistant Professor" in
paragraph 3 and sub-rule (2-A) of Rule 8 must be inter-
preted in its ordinary sense as meaning teaching experience
.gained "in the capacity of". In Black's Law Dictionary, 5th
Edn., p. 104, the meaning of the word "as" as given is:
B "Used as an adverb, etc., .means like, similar to, of the
same kind, in the same manner, in the manner in which."
In Shorter Oxford Dictionary, 3rd Edn., p. 111, the word
"as" is stated to mean: "The same as, in the character,
capacity, role of".
C In spite of all this, the contention of respondents Nos. 1 & 2 that they
were entitled to the benefit of the period of service rendered by them
as Temporary Engineer on an ad-hoc basis w.e.f. January 2, 1971 and
May 19, 1969 respectively prior to their appointment as Assistant
Engineers on regular basis on April 21, 1975 for purposes of reckoning
their eligibility under r.6(b) read with the Explanation thereto of the
D Class I Rules as also for purposes of their seniority in the cadre of
Assistant Engineers, cannot prevail. They were not recruited under
paragraphs 8.312 to 8.316 of the Manual of Administration, Public
Works Department. In the erstwhile State of Punjab there was a dis-
tinct class of Engineers designated as Temporary Engineers. All
persons appointed as Temporary Engineers had to face the Public
E Service Commission for selection to the post under rr.4 and 5 of the
Punjab Service of Engineers, Class II. P.W.D (Irrigation Branch)
Rules, 194 I. Under the Rules the term 'Temporary Engineer' was
defined in r.2(f) to mean an engineer in the service of the Public Works
Department, Punjab whose appointment was temporary within the
meaning of the Fundamental Rules, was pensionable and who was not
F a member of any regular service. The word 'service' as defined in
-
r.2(g) of the Rules meant the Punjab Service of Engineers, Class II,
Irrigation Branch. R.5 provided that no Temporaty Engineer could be
taken into service or member of the Overseers Engineering Service,
Pun jab promoted unless he had been declared by the Commission on
.the report of the Chief Engineer to be fit for the service, was serving
G the Department and held an appointment for not less than two years
continuously before the date of entry into the service.
Next ~ame the Punjab Service of Engineers, Class II, P. W. D.
(Irrigation Branch) Rules, 1970. The expression 'member of service'
was defined in r.2(12) to mean an officer appointed substantively to a
H cadre post. The definitions of the word 'service' and of the term
ASHOKGULATI v. B.S. JAIN [SEN,J.] 623
'
...y
'Temporary Engineer' in r.2( 15) and ( 16) remained the same except A
for the difference that the word 'temporary' carried the meaning as
given in the Civil Service Regulations in place of the Fundamental
Rules. R.6 provided for the manner of recruitment of Temporary
Engineers from different sources, in the proportions and the order
indicated. Sub-r.(3) thereof provided that in case a candidate was not
available from sources 1 and 3 i.e. by direct recruitment or by promo- B
tion, and a person had to be appointed in public interest, as a stop-gap
arrangement, the period of service rendered by such person shall not
be reckoned for the.purpose of seniority. Sub-r. (4) provided that the
~ _,.·.· Government could fill a short term vacancy in the exigencies of public
·service, after recording specific reasons, for the period not exceeding
six months from the Overseers Engineering Service, Irrigation C
~-· Branch. It is quite apparent under these rules th~appointment of
respondents Nos. 1 & 2 as Temporary Engineers on an ad-hoc basis
was de hors the rules. • '
It may seem to be some illogical that though respondents Nos.
& 2 were appointed as Temporary. Engineers on an ad-hoc basis, they D
should be deprived of the period of their officiation as such till they
were absorbed to the post of Assistant Engineer on a regular basis
through the Public Service Commission on April 21; 1975. That is a
legal consequence which· cannot be avoided on well-settled principles.
In their case the. length of continuous officiation cannot be the basis for
reckoning their seniority since they never became members of Class II E
Service prior to their absorption. On the terms of appointment of
respondents Nos. 1 & 2, it was specifically provided that their appoint-
ment was purely on an ad-hoc basis for a period of six months from the
date of their joining the post on a fixed salary of Rs.400 + allowances
and that their services were liable to be terminated without notice. It
was also specifically mentioned that the appointment as such Tern- F
porary Engineers on ad-hoc basis would not count towards seniority or
increment in their salary. Ii was further stated that the posts of
Temporary Engineers in Class II Service would be advertised in due
course by the Public Service Commission and that if they were· not
selected by the Commission, their services would be terminated with-
out 'no.tire. They are also intimated that their inter-se seniority among G
the Temporary Engineers so recruited would be in the order of merit
in the list of candidates as settled by the Commission. It is common
ground that respondents Nos. 1 & 2 were not recruited through the
Public Service Commission. It was not till July 8, 1973 that.the Secre-
tary to the Commission conveyed to the State Government the
approval of the Commission to the ad-hoc appointment of 251 H
624 SUPREME COURT REPORTS [1987] 1 S.C.R.
A Temporary Engineers beyond the period of six months till regular
appointments were made in the posts of Assistant Engineers through
the Commission. These are the facts on which there is no doubt or
difficulty as to the principles applicable.
B According to the accepted canons of service jurisprudence,
seniority of a person appointed must be reckoned from the date he :ly
becomes a member of the service. The date from which seniority is to
be reckoned may be laid down by rules or instructions (a) on the basis
of the date of appointment (b) on the basis of confirmation (c) on the
basis of regulation of service (d) on the basis of length of service, or (e)
on any other reasonable basis. It is well-settled that an ad-hoc or ,._
C fortuitous appointment on a temporary or stop-gap basis cannot be
taken into accoW1t for the purpose of seniority even if the appointee was
qualified to hoW the post on a regular basis, as such temporary" tenure ~
hardly counts for seniority in any system of service jurisprudence. In
somewhat similar circumstances, in the case of State of Gujarat v. C. G.
D Desai & Ors., [1974] 2 SCR 255 the· question for consideration was
whether in the case of Deputy Engineers directly recruited through the
Public Service Commission by competitive examination, the service, if
any, rendered by them as officiating Deputy Engineers prior to their
appointment to Class II Service i.e. during the pre-selection period,
· could be taken into account for purposes of their eligibility for promo-
tion as Executive Engineers under r. 7(2) of the Bombay Engineering -'*
E Service Rules, !960 which provided for a period of 7 years' experience
in Class II .Service. The Government's stand was that the service
rendered by the direct recruits prior to their appointment to the Class
II Service could not be taken into account in computing their eligibility •
of 7 years' experience in that class of service and the Court upheld the
stand. It was contended on behalf of the promotees that if for promo-
F tion to the post of Executive Engineer in Class I Service the period of . ~
eligibility of 7 years' experience in Class II Service was to start from >-;--
the date of absorption in that class of service, then, for most of them
there would be rare chance of ever getting promotion as officiating
Executive Engineers and as many of them had less than 7 years to go
before attaining the age of supe·rannuation. The contention was that
G r. 7(2) of the Rules did not permit discrimination between the pro-
motees and direct recruits in the matter of computing 7 years' service
for further promotion as officiating Executive Engineers. The conten- ~
tion was repelled on the ground that direct recruits and promotees in
Class II Service constituted two distinct groups or classes and the
H classification was based on intelligible differentia, and it was observed:
•
ASHOKGULATiv. B.S.JAIN(SEN,J.] 625
"If a person, like any of the respondents, to avoid the long .A
tortuous wait _leaves his position in the 'never-ending'
queue of Temporary/Officiating Deputy Engineers etc.
looking for promotion, and takes a short cut through the
direct channel, to Class II Service, he gives up once for all,
the advantages and disadvantages that go with the channel
of promotion and accepts all the handicaps and benefits B
which attach to the group of direct recruits. He cannot,
after his direct recruitment claim the benefit of his pre-
selection service and thus have the best of both the worlds.
,.. It is well-settled that so long as the classification is reason-
able and the persons falling i.n the same class are treated
.J.. alike, there can be no question of violation of the constitu- c
tional guarantee of equal treatment."
In taking that view, the Court avoided a doctrinaire approach and
approached the problem from a pragmatic view. It was said:
"If the claim of the respondents to the counting of their D
pre-selection service is conceded, it will create serious com-
plications in running the administration; it will result in
inequality of treatment rather than in removing it. If the
pre-selection service as Officiating Deputy Engineers of
direct recruits having such service, is taken into account for
. the purpose of promotion, . it would create two classes E
-
amongst the same group and result in discrimination
against those direct recruits who had no such pre-selection
service to their credit."
It would be repugnant to all accepted concepts of service
, .·jurisprudence if the claim of persons like respondents Nos. I .\\: 2 who F
~ _ were employed as Temporary Engineers on ad-hoc basis de hors the
rules for six months at a time were extended the benefit of their con-
tinuoµs officiation as such ad-hoc employees in reckoning their .senior-
ity vis-a-vis direct recruits in considering their eligibility under r.6(b)
of the Class I Rules for promotion to a higher grade or post of Execu-
tive Engineer. In A.P.M. Mayakutty etc. v. Secretary, Public Service G
Depa~tment. [ 1977] 2 SCR 937 the question was whether the period of
service rendered by such ad-hoc employees appointed under r. IO( a)
(i)( I) of the Madras State & Subordinate Services Rules purely on.an
ad-hoc basis and as matter of stop-gap arrangement, were entitled to
count for the purpose of seniority, their period of service on ad-hoc ~fl
basis during which they served in a stop-gap arrangement. It was held
626 SUPREME COURT REPORTS [1987] l S.C.R.
A that such service could not be taken into account for the purpose of
..,.
seniority from the date of their initial appointment. The Court speak-
ing through Chandrachud, CJ. after referring to the provision con-
tained in r. lO(a)(i)( 1) of the Rules, stated:
"This provision contemplates the making of temporary
B appointments when it is necessary in the public interest to
~
do so* to an emergency *owing which has arisen for filling.a
vacancy immediately. Such appoiniments, ,in terms, are
permitted to made otherwise than in accordance with the
rules. The letters of appointment issued to the appellants
mention expressly that they were appointed under rule ...
lO(a)(i)(l), that the appointments were "purely temporary A )
c necessitated on account of t.he non-availability of regularly
selected candidates conferring no claim for future appoint- i
ment as Junior Engineers .... and that the appointment is
liable to be terminated at any time without previous
notice." In face of the. provisions of the rule and the terms
D of the appointment it seems to us clear that the appellants
were appointed purely as a matter of stop-gap or emer-
gency arrangement. Since such service cannot be taken into
account for purposes of seniority, the appellants cannot
E
contend that the entire service rendered by them from the
date of their intitial appointment must count for purposes
of seniority." •
.
The Court distinguished the case of C.P. Damodaran Nayar v. State of
Kera/a & Ors., [1974] 2 SCR 867 on the ground that the temporary
service rendered by a District Munsiff recruited in a regular manner
through the Public Service Commission could not, by any stretch of
-
F imagination, be considered to be purely as a matter of fortuitous or
stop-gap arrangement. The dis.tinguishing features in Mayakutty's '~-
case, in the words of Chandrachud, CJ. were:
"The distinguishing feature of that case, which is highligh-
ted in the judgment of the Court, is. that the appellant
G therein was "appointed in a regular manner through the
Public Service Commission" and therefore his appointment
could not "by any stretch of imagination" be described as
having been made to fill a purely stop-gap or fortuiious
vacuum. In our case the initial appointment was not only
made without any reference to the Public Service Commis-
H sion but the various rules and the terms of the appellants'
ASf!OK GULATI'· B.S .. JAIN [SEN, J.] 627
'
.k appointment to which we have drawn attention show that A
the appellants were appointed purely as a matter of
fortuitous or stop-gap arrangement. The concurrence of
the Public Service Commission to the continuance of the
appellants in the posts filled by them first after the expiry of
three months and then· after the expiry of one year, was
obtained not with a view to regularising the appointments B
since their inception but for the purpose of meeting the
requirements of a provision under which such concurrence
-is necessary to obtain if an appointment made without
selection by the Public Service Commission is required for
any reason to be continued beyond three months or a.
~." c
That precisely is the case here. It must therefore be held that the
period of service rendered by persons like respondents Nos. I & 2 who
were appointed on ad-hoc basis purely as a stop-gap arrall{\ement for
six months at a time de hors the rules, cannot be considered for
purposes of their seniority in Class II Service or in reckoning their D
eligibility of 8 years' service in that class of service under r.6(b) of
Class I Rules.
We feel it necessary to emphasise that the principles laid down
by this Court in the two cases of N.K. Chauhan and S.B. Patwardhan
which were reiterated in Ba/eshwar Das's case and subsequently E
followed in several other cases do not lay down any principle to the
. contrary. These cases are· not an authority for the proposition relied
upon. On the contrary, they clearly proceed on the principle that
persons appointed on an ad-hoc basis or for fortuitous reasons or by
stop-gap arrangement, constitute a class which is separate and distinct
from those who are appointed to posts in the service in strict con- F
formity with the rules of recruitment. In the case of S.B. Patwardhan,
Chandrachud, CJ. observed:
"We however hope that the Government ~ill bear in mind
the basic principle that if a cadre consists of both permanent
and ·temporary employees, the accident of confirmation G
cannot be an intelligible criterion for determining seniority
as between direct recruits and promotees. All other factors
being equal, continuous officiation in a non-fortuitous
vacancy ought to receive due recognition in determining
rules of seniority as between persons recruited from diffe-. H
rent so.urces, so Jong as they belong to the same cadre,
628 SUPREME COURT REPORTS [ 1987] l S. C.R.
A discharge similar functions and bear similar responsi-
bilities."
In Baleshwar Das's case, Krishna Iyer, J. affirmed the princi('.1le in his
own charismatic and picturesque language:
B
"We must emphasise that while temporary and permanent
posts have great relevancy in regard to the career of
government servants, keeping posts temporary for long,
sometimes by annual renewals for several years, and deny-
ing the claims of the incumbents on the score that their
posts are temporary makes no sense and strikes us as
c arbitrary, especially when both temporary and permanent
appointees are functionally identified. If, in the normal
course, a post is temporary in the real sense and the ap-
pointee knows that his tenure cannot exceed the post in
longevity, there cannot be anything unfair or capricious in
D clothing him with no rights. Not so, if the post is, for cer-
tain departmental or like purposes, declared temporary,
but it is within the ken of both the government and the
appointee that the temporary posts are virtually long-lived.
It is irrational to reject the claim of the 'temporary' ap-
pointee on the nominal score of the terminology of the
E post. We must also express emphatically that the principle
which has received the sanction of this Court's pronounce-
ments is that officiating service in a post is for all practical
purposes of seniority as good as service on a regular basis.
It may be permissible, within limits, for government to
ignore officiating service and count only regular service
F when claims of seniority come before it, provided the rules
in that regard are clear and categories and do not admit of
any ambiguity and cruelly arbitrary cut-off of long years of
service does not take place or there is functionally and
qualitatively, substantial difference in the service rendered
in the two types of posts. Whil~ rules regulating conditions
of service are within the executive power of the State or its
G
legislative power under proviso to Article 309, even so,
such rules have to be reasonable, fair and not grossly unjust
if they are to survive the test of Articles 14 and 16."
We must also refer to the d~cision in A. Janardana v. Union of India &
H Ors., [1983] 3 SCC 601 where Desai, J. had occasion to observe:
ASHOKGULATI v. B.S. JAIN ISEN,J.] 629
"In other words after having rendered service in a post A
included in the service, he is hanging outside the service,
without finding a berth in service, whereas direct recruits of
1976 have found their place and berth in the service. This is
the situation that stares into one's faee while interpreting
the quota-rota rule and its impact on the service of an
individual. But avoiding any humanitarian approach to B
the problem, we shall strictly go by the relevant Rules and
precedents and the impact of the Rules on the members of
the service and determine ~hether the impugned seniority
list is valid or not. But, having done that we do propose to
examine and expose an extremely undesirable, unjust and
inequitable situation emerging in service jurisprudence
from the precedents namely, that a person already render- C
ing service a~ a promotee has to go down below a person
who comes into service decades after the promotee enters
the service and who may be a schoolian, if not in embryo,
when the promotee on being promoted on account of the
exigencies of service as required by the Government D
started rendering service. A time has come to recast service
jurisprudence on more just and equitable foundation by
examining all precedents on the subject to retrieve this
situation."
To the same effect are the decisions in O.P. Sing/av. Union of India, E
[1984]4SCC450;G.S. Lambav. Union of India, [1985]2SCC604;P.S.
Mahal v. Union of India, [1984] 4 SCC 545 and Pran Krishna Goswami
... & Ors. v. State of West Bengal & Ors., [1985] Suppl. SCC 221. It must·
now be taken as well-established after these decisions that in the
absence of any other valid principle of seniority, the inter-se seniority
,. between direct recruits and promotees should as far as possible be F
ii(\ Jetermined by the length of continuous service whether temporary or
' - permanent in a particular grade or post (this should exclude periods
for which an appointment is held in a purely stop-gap or fortuitous
arrangement). No doubt, there are certain observations. in the two
cases of G.P. Dova/ and Narender Chadha which seem to run counter
to the view we have taken, but these decisions turned on their own G
peculiar facts and are therefore clearly distinguishable and they do not
lay down any rule of universal application.
For all these reasons, the appeal succeeds and is allowed. The
judgment and order of the High Court quashing the impugned rioti.fi- H
cation of the State Government dated December 20, 1978 !)laking
630 SUPREME COURT REPORTS [1987] 1 S.C.R.
A ad:hoc promotions of the appellants and respondents Nos. 5-24 are set
aside. Instead, we direct that the.impugned order of the State Govern-
ment making ad-hoc promotions of 62 Assistant Engineers including
the appellants and respondents Nos. 5-24 as officiating Executive
Engineers will stand and they shall continue to function as such, sub-
ject to the terms and conditions contained in the aforesaid order till
B the process of making appointments by promotion to these posts is
completed. We hope and trust that the State Government will strike a
just balance between the competing claims of these 62 Assistant
Engineers promoted as Executive Engineers on ad-hoc basis, and
persons like respondents Nos. 1 & 2 appointed as Temporary
Engineers on.an ad-hoc basis who could at the most claim that they
c should be given the benefit of the period of service from April 21, 1975
when they were recruited as Assistant Engineers through the Public
Service Commission, provided they satisfy the test of eligibility of 8
years' experience in that class of service, while considering the cases of ·
all eligible members of Class II Service for promotion to the post of
Executive Engineer in Class I Service in accordance with law and will
D
complete the process of appointment within six months from today.
There shall be no order as to costs.
S.R. Appeal allowed.
-
. ,
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